BOS v Cobra
[2012] EWPCC 44 at [28] and [30]. 17.If costs of isolated issues on which a party succeeds are awarded at an interim stage (outside of the Rule 63.26(2) exception), there is a danger that even though they are below the cap, they may be disproportionate by the end of the liability phase as a whole. In other words, there is a danger of awarding too much for isolated issues. This may be because when viewed from the perspective of a judgment on all liability issues, the claimant’s success on those interim issues may appear to be less significant in the context of the claim as a whole than it did at the time of the summary judgment application or because the means deployed to achieve the early victory on those issues was disproportionate. The best time to take a view on this (particularly given the low caps for each stage) is at the end of the proceedings. The only exception I can think of is where all, or virtually all, liability issues have been resolved at an interim stage and the court is in a good position to assess all the factors relevant to summary assessment (including overall proportionality). 18.I am not persuaded that this case warrants an exceptional course. The issues on which the Claimants have succeeded are relatively narrow. The infringement case based on the five New Works is a relatively insignificant part of the pleading. The main liability issues concern the alleged misrepresentations during the negotiation of the disputed contract of sale in July 2019. This leads into whether the Claimants can rescind that contract or whether if those misrepresentations became terms of that contract the Defendants breached them. 19.20.I therefore refuse the application to assess the costs of the Determined Issues within the prescribed caps at this stage.